Alexander v Attorney-General

B INTRODUCTION & background 3 In August 2016, the United Kingdom requested Mr Alexander's extradition. United Kingdom authorities allege that between 1970 and 1976, Mr Alexander engaged in acts of physical and sexual abuse against six complainants aged between 11 and 15 years. 4 The purpose of the extradition is said to be so that Mr Alexander, who will be 84 years of age in December, may face prosecution in the United Kingdom for the following offences: (a) one offence of indecent assault; (b) one offence of assault to injury; (c) two offences of lewd, indecent and libidinous practices and behaviour; and (d) three offences of assault to injury and lewd, indecent and libidinous practices and behaviour. 5 In December 2016, the Minister for Justice issued a notice pursuant to s 16(1) of the Extradition Act 1988 (Cth) (Act) and in January 2017 an extradition arrest warrant was issued by a magistrate pursuant to s 12 of the Act. Mr Alexander was then arrested and, on 23 January 2017, he was remanded in custody pursuant to s 15(2) of the Act. In May 2017, a magistrate found Mr Alexander eligible for surrender to the United Kingdom. 6 On 17 March 2019, the first respondent (Attorney-General) then made a decision pursuant to s 22(2) of the Act to surrender Mr Alexander to the United Kingdom. For the purpose of making his decision whether Mr Alexander should be surrendered, the Attorney-General had been provided in February 2019 with a document (Submission) prepared by the Attorney-General's Department (Department). I will return to this Submission in more detail below. 7 On the same date, the Attorney-General issued a warrant, pursuant to s 23 of the Act, authorising Mr Alexander's surrender. Mr Alexander has remained in extradition detention while this proceeding has progressed. 8 On 8 April 2019, Mr Alexander commenced this proceeding seeking judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the Attorney-General's decision made pursuant to s 22 of the Act, and the warrant issued by the Attorney-General pursuant to s 23 of the Act. 9 Mr Alexander's originating application seeks the following relief: (a) an order in the nature of a writ of certiorari to quash the Attorney-General's decision made pursuant to s 22; (b) an order in the nature of a writ of certiorari to quash the warrant issued by the Attorney-General pursuant to s 23; and (c) an order in the nature of a writ of mandamus directing the Attorney-General to: (i) determine that Mr Alexander not be surrendered to the United Kingdom in response to the extradition request; and (ii) order Mr Alexander's release.

C legislative landscape 10 The Act provides for the extradition of persons from Australia to other countries. For a detailed summary as to how the Act codifies the law and sets out a four-stage process by which a person may be extradited, see Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 at 86-89 [6]-[23] per Middleton and Wigney JJ. As their Honours explain, each stage of the process involves a decision of a binary nature based on stated criteria. If the relevant criteria are satisfied, the extradition process continues. If not, the process comes to an end. It is unnecessary to set out their Honours' description of the first three stages as it is only the fourth stage with which this proceeding is concerned. 11 This stage occurs after a person has been found to be eligible for surrender under s 19 of the Act, and involves the determination by the Attorney-General under s 22(2) of the Act that the person either is, or is not, to be surrendered in relation to a qualifying extradition offence. 12 Subsection 22(2) of the Act states: The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences. 13 The power in s 22(2) is then further qualified by a number of preconditions outlined in sub-s (3). The preconditions go to issues such as the Attorney-General not having substantial grounds for believing that the person would be in danger of being subjected to torture. It is unnecessary, however, to set these out in any comprehensive manner given that Mr Alexander only challenges the Attorney-General's application of s 22(3)(f) in his application. Sub-section 22(3)(f) is in the following terms: … the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence. 14 If the Attorney-General considers that the person should be surrendered, s 23 provides that the Attorney-General shall issue either a warrant for the surrender of the person, or a temporary surrender warrant under s 24. 15 It is important to preface any analysis of s 22 by noting that the power in that section, obviously enough, is one of executive discretion, subject to the relevant legislative constraints: Vasiljkovic v Commonwealth [2006] HCA 40; (2006) 227 CLR 614. The application before the Court therefore is one for judicial review pursuant to s 39B of the Judiciary Act, and not an opportunity for the Court to consider the merits of the Attorney-General's decision and substitute his decision with the decision the Court thinks should have been made. As the High Court recently emphasised in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 184-185 [23] "judicial review of administrative action … is confined to the legality of the … decision. In particular, judicial review is concerned with whether the … decision was one which [the decision-maker] was authorised to make". 16 An important further qualification to the limit of judicial review in this case, is that the Act does not require the Attorney-General to give reasons for the decision reached upon the exercise of his discretion in s 22: O'Connor v Zentai [2011] FCAFC 102; (2011) 195 FCR 515 at 589-590 [213]-[215]. It is well-settled that, outside of a statutory obligation, there is no common law obligation which requires an administrative decision-maker to provide reasons for decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 65. 17 A further, connected point should be made: although the Attorney-General's determination is recorded on the front page of the Submission referred to above at [6], this does not mean that the Submission constitutes the reasons for the decision.

D departmental submission 18 It is necessary to tarry a little to explain in some detail the relevance and contents of the Submission given its primacy in Mr Alexander's submissions. The Submission comprises the material given to the Attorney-General at the time he made his decision. It was not in dispute that regard can be had to the Submission in determining the material before the Attorney-General, and assessing whether that material could support the inference that he had applied the wrong test or was not "in reality" satisfied of the requisite matters: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at 223 [39]. In having regard to the Submission, it should be read as a whole and parts should not be taken out of context: Palme at 221 [28]. 19 The Submission is a two-page document with 18 attachments. To satisfy procedural fairness requirements, the Department had invited Mr Alexander to make representations. Mr Alexander's representations comprise attachments D1-D10. The Submission notes that in the light of the health issues raised by Mr Alexander, the Department arranged for an independent medical assessment of Mr Alexander by Associate Professor Gideon Caplan (attachment E1). The Department also sought responses from the United Kingdom to the representations of Mr Alexander and the independent medical assessment (attachments F1-F3). Attachment B to the Submission is then a document entitled "Advice on the preconditions to surrender and grounds for refusal of surrender under the Extradition Act 1988 (Cth)" (Advice). 20 Mr Alexander's first representation appears in a letter from Mr Alexander's then solicitors dated 10 November 2017. The letter states: Mr Alexander's age and health together provide a proper and sufficient basis for the Minister [ie, the Attorney-General] to consider that Mr Alexander should not be surrendered to the United Kingdom in relation to the qualifying extradition offences, in the exercise of the Minister's discretion under s 22(3)(f) of the Act. The evidence to date indicates that Mr Alexander suffers from several chronic and ongoing health problems and that, combined with Mr Alexander's age and life expectancy, travel to the United Kingdom presents a real risk of serious injury and further significant ongoing deterioration of Mr Alexander's health, including death. We are in the process of obtaining further evidence regarding Mr Alexander's physical health. The evidence also suggests that the process of surrender may undermine Mr Alexander's capacity to defend himself in any criminal proceedings. There is a diagnosis of cognitive impairment and a preliminary assessment of early dementia, along with a risk of delirium by displacement. The prosecution of Mr Alexander in these circumstances is problematic, to say the least, and at this stage calls for further enquiry. We are in the process of obtaining further evidence with a view to facilitating a concluded diagnosis of Mr Alexander's cognitive impairment. 21 The letter attached the following documents: (a) a report from Dr John Obeid, a consultant physician and geriatrician, dated 26 October 2017; (b) a report from Dr Mauro Vicaretti, a vascular surgeon, dated 24 October 2017; (c) a report from Dr Fiona Ong, a general medical practitioner, dated 5 April 2017; (d) a report from Dr Sarah Aitken, a vascular surgeon, dated 3 February 2017; and (e) medical records from the Justice Health and Forensic Mental Health Network. 22 On 29 November 2018, a further letter of representation was made by Mr Alexander's solicitors. The letter attached a supplementary report from Dr Obeid, dated 24 November 2018, a statement from Mr Tony Issa (a close friend of Mr Alexander) dated 28 September 2018, and Mr Alexander's MyHealth records. 23 Dr Obeid's supplementary report responds to the report obtained by the Department from Associate Professor Caplan, senior specialist geriatrician and consultant physician at Prince of Wales and Prince of Wales Private Hospitals, dated 11 May 2018. 24 The letter also responds to assurances provided by the United Kingdom in a letter to the Department dated 14 May 2018, and 5 July 2018. The letter concludes: The supplementary Obeid report provides further support for the proposition that Mr Alexander should not be surrendered to the United Kingdom. Mr Alexander's limited life expectancy and underlying comorbidities militate against his ability to travel. Even if the Minister were willing to assume the serious risk of deterioration of Mr Alexander's health inherent in such travel, that deterioration, even if not life- threatening, would further undermine Mr Alexander's ability to defend himself in any criminal proceedings. 25 Following this letter of representation, the Department received further information from the United Kingdom dated 21 December 2018. 26 The representations from Mr Alexander's solicitors are analysed in the Advice under the heading "VI - PARAGRAPH 22(3)(f) - GENERAL DISCRETION". At [57] the Advice states: The issues raised by Mr Alexander in his representations are outlined and discussed below, namely: (a) surrender presents a real risk of significant deterioration of Mr Alexander's health, and (b) surrender may injure Mr Alexander's capacity to defend himself. 27 Those matters are then discussed from [58]-[123] of the Advice. Those paragraphs should be read in their entirety, and in context. The Advice concludes as follows: In summary, the department is of the opinion that: … • the matters raised by Mr Alexander in his representations, taken singly or collectively, do not preclude the exercise of your discretion under paragraph 23(3)(f) to surrender Mr Alexander to the UK. The department recommends that you determine, under subsection 22(2) of the Extradition Act, that Mr Alexander is to be surrendered to the UK in relation to the qualifying extradition offences.

D Adjournment application 28 The prospect of an adjournment application came to my attention the day before the hearing, when Mr Alexander's solicitors wrote a letter to my chambers as a matter of courtesy and with the consent of the Attorney-General. The communication indicated that an application for adjournment would be made on the basis that Mr Alexander had recently been admitted to hospital due to suffering a stroke, and as a result had lost eyesight in one eye. 29 At the commencement of the hearing, Mr Smith SC, who appeared for Mr Alexander, indicated that the purpose of the adjournment was to allow time for a new representation as to this recent medical evidence to be made, and for the Attorney-General to make a fresh decision on the basis of this new evidence. 30 Although I indicated to counsel that a pragmatic approach may be to consent to an adjournment for a short period of time, in order to allow the Attorney-General to indicate whether a fresh decision would be made, the Attorney-General opposed the application. Senior counsel for the Attorney-General, Mr Kennett SC, noted that the objection was based upon the fact that the prospect of an approach to the Attorney-General for a fresh determination, and the fact of the evidence itself, does not as a matter of law have any bearing upon this application for review. This proposition is plainly correct as a matter of law and Mr Smith, with commendable recognition of the reality of the position, did not seek to persuade me to the contrary. Mr Smith instead placed weight on the fact that the new medical report indicates a further dramatic shortening of Mr Alexander's life expectancy, from 2.5 years to 1.5 years, and the nature of the evidence would so clearly demand a fresh consideration of the decision that it was inutile to proceed now to hear the appeal as to the present decision. 31 Given the Attorney-General's objection, and the readiness of the matter for hearing at that time, I refused the application for adjournment. The recent developments, although unfortunate, are legally irrelevant to the task at hand. Mr Alexander can make his fresh representations without any unnecessary delay and the additional cost of an adjournment of the hearing. To act otherwise would be contrary to the case management objectives enshrined in Pt VB of the Federal Court of Australia Act 1976 (Cth).

E submissions 32 Mr Alexander's submissions are relatively narrow in compass. Although at the time of making his application, his then lawyers foreshadowed that the Attorney-General's decision would be challenged on the basis of legal unreasonableness, this was not submitted in terms at the hearing. The written submissions filed in advance of the hearing appeared to have been directed to the underlying merits of the decision. Great emphasis was placed on the medical reports produced by Mr Alexander in conjunction with his representations, and a large portion of the lengthy submissions was directed to summarising the various medical diagnoses. During oral submissions, the submission was put in a more refined manner by Mr Smith, which I will come to below. 33 It is unnecessary to set out or summarise the various medical reports in any greater detail than I have done above. Although the reports were extensive and mentioned a large number of specific conditions and medical risks in relation to the transport of Mr Alexander to the United Kingdom, Mr Alexander did not at any point contend that the content of the reports were not provided to the Attorney-General. The criticism of the Advice appears to have been directed to the analysis and conclusions expressed in the Advice, rather than the descriptions of the materials before the Attorney-General. 34 Before addressing the individual submissions made by Mr Alexander, it is useful to emphasise that like the Submission as a whole, a component part being the Advice, does not constitute a statement of reasons on behalf of the Attorney-General. It is therefore misdirected to attack the analysis or conclusions expressed in the report, as opposed to the way in which the report provided information to the Attorney-General. 35 In any event, three partially overlapping submissions were advanced by Mr Alexander. 36 In written submissions, the first submission was that the Advice paid "insufficient attention" to Mr Alexander's age and likely dangers to his health by travelling to the United Kingdom by either sea or air, and hence misled the Attorney-General (Weight Submission). The Department is said to have "showed its preference for extradition" by downplaying powerful reasons for recommending against extradition, and by giving too much weight to the wish of the United Kingdom that Mr Alexander be prosecuted. In oral submissions, the more refined submission was made that even in circumstances where the challenge is to a decision for which there is no obligation to give reasons, there must be a point where the medical evidence is so stark that the discretion must be exercised in favour of not extraditing Mr Alexander. I took this to amount to an allegation of legal unreasonableness, namely, that the medical evidence was so overwhelming, that no reasonable decision maker in the position of the Attorney-General could have made the decision to extradite Mr Alexander. 37 Secondly, it was submitted that the decision to surrender Mr Alexander to the United Kingdom was "unjust or oppressive" (Unjust Submission). 38 Thirdly, Mr Alexander submitted that there has been inordinate delay between the commission of the alleged offences and the making of the request for extradition (Delay Submission). The offences were allegedly committed up to 49 years ago, and no explanation has been given for the delay.

F.1 Weight Submission 39 As to the Weight Submission, it is useful to deal with the submission in two parts. First, whether the Advice misled the Attorney-General. The Department is said to have "showed its preference for extradition" by downplaying powerful reasons for recommending against extradition, and by giving too much weight to the wish of the United Kingdom that Mr Alexander be prosecuted. Mr Smith submitted that the medical reports make plain that Mr Alexander suffers from very serious health issues, and that the doctors' prediction was that sending him overseas would likely reduce his life expectancy significantly, and aggravate various illnesses. It was said that there is no analysis in the Advice which considers in any depth the very real threat to Mr Alexander's life that is posed by the prospect of extradition. 40 Leaving aside the legal problem that the thrust of the argument amounted to a merits attack, the further difficulty is that the Submission included all relevant submissions and medical reports, and the Advice explicitly considered those representations made on Mr Alexander's behalf, including both the risk of significant deterioration of Mr Alexander's health, and Mr Alexander's capacity to defend himself. 41 When it came to analysing the material and putting forward a recommendation to the Attorney-General, the Department embarked upon a process whereby it afforded different weight to different factors as it saw fit. The analysis was transparent, and put in such a way that the Attorney-General was able to review the material and the recommendation himself, and make an informed decision. The process of reasoning in the Submission cannot now be attributed to the Attorney-General and the varying weight given by the Department to various factors cannot found any inference as to the weight that the Attorney-General himself attached to the issues canvassed. 42 The second point to make regarding this submission, is that although the submission was not explicitly expressed as being one of unreasonableness, given the necessity for Mr Alexander to demonstrate jurisdictional error if he is to be successful, I indicated to the parties during the course of the hearing, that I would take this as being a submission that the decision was legally unreasonable or irrational. 43 Legal unreasonableness has been described in a variety of ways. Recently, Griffiths J (with whom Gleeson J agreed) provided a comprehensive summary of the current state of the law in Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 at [31]-[38]. Having regard to the role of a court when conducting judicial review, in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Gageler J explained that a review of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": at 375 [105]. Further, in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408, Nettle and Gordon JJ expanded upon this statement, noting at 428 [83] that: … grievous error may result if a court on review had to identify a particular error to found its conclusion of unreasonableness. If the court approached the assessment in this way, at least one important part of the lens for assessing legal unreasonableness would be removed: namely, error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances. 44 It is this last-mentioned part of the lens with which we are concerned in this case. 45 In CVO17 v Minister for Immigration and Border Protection [2019] FCA 1612 at [42]-[44], I recently had cause to consider the application of legal unreasonableness in circumstances where no reasons had been given: As was observed in Li at 367 [76] the judicial freedom for an appellate court to draw inferences as to the unreasonableness of a decision is limited. To this end, the High Court noted that: Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. In circumstances such as the present, where no reasons have been provided for the exercise of a discretion, "all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility": Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 446 [45]. This assessment must be made bearing in mind that it is for the repository of the power, and not for the Court, to exercise the power in such a way as the repository of power thinks fit, subject to the requirement that it be done according to law: at 446 [45]; see also Avon Downs Proprietary Limited v Federal Commissioner of Taxation (1949) 78 CLR 353 at 359-360. Ultimately, I must therefore focus upon the outcome of the exercise of power in the factual context presented, being the adjectival outcome, that the appellant was questioned in the absence of Mr Hudson, and assess the intelligibility of that outcome in the factual context I have described above. 46 The consideration of whether a decision is unreasonable must begin then, with an examination of the scope, purpose and object of the legislative scheme. Here, the general discretion according to which the decision was made is one which is particularly broad. In Rivera v Minister for Justice and Customs [2007] FCAFC 123; (2007) 160 FCR 115, Emmett J (with whom Conti J agreed) described the general discretion in s 22(3)(f) in the following terms (at 119 [14]): Finally, under s 22(3)(f), the Minister must consider that the person should be surrendered in relation to the offence. Thus, the Minister has a general discretion whether to surrender an eligible person or not. The discretion is unfettered and the Minister may, in the exercise of the discretion, take into account any matters, or no matters, provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Act. 47 In exercising this discretion, the Attorney-General was not bound to take any particular matter into account. The fact that a particular matter is the subject of a submission or representation does not mean that the decision-maker is bound to consider it: Snedden at 108-109 [151] (Middleton and Wigney JJ). 48 A further element of the unreasonableness analysis is worth repeating: it is a fact-dependant inquiry, and requires careful examination of the particular evidence in each case. And in this case, given that there was no obligation to provide reasons, there is no confined point of focus for that analysis other than the decision itself. Doing the best I can, and focussing upon the outcome of the exercise of power, I must assess the intelligibility of that outcome. Bearing in mind the breadth of the power and legislative landscape, it does not seem to me that it could be said that the decision to extradite Mr Alexander was one which lacks any intelligible justification. To adapt the words of Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21], this was a decision that a decision-maker could reasonably come to and because it was a conclusion upon which reasonable minds could differ (looking at it favourably from the perspective of Mr Alexander), it cannot be legally illogical, irrational or unreasonable. Evidence as to his medical condition was before the Attorney-General, as was a submission identifying the seriousness of the alleged offences. In short, the decision reached by the Attorney-General is one which in all the circumstances, a decision-maker could reasonably make.

F.2 Other Submissions 49 As to the Unjust Submission (to the extent it is different from the "Weight Submission", which as developed orally, is more properly seen as an argument as to legal unreasonableness), this submission proceeds upon the basis that the question of whether extradition is "unjust or oppressive" is relevant to the exercise of the Attorney-General's discretion. The argument is made based on language that appeared in the now repealed Extradition (Commonwealth Countries) Regulations (Cth). Mr Alexander concedes that the replacement regulations, Extradition (Commonwealth Countries) Regulations 2010 (Cth), do not apply to the United Kingdom. Indeed, the previous regulations had ceased to apply to the United Kingdom in 2004. On this basis alone, this ground must fail. 50 In Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 at 55, Brennan J stated: The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power. 51 In the present case, there is no express requirement that the Attorney-General have regard to the question of unjustness or oppressiveness. The discretion in s 22(3)(f) is entirely general and no particular matters are required to be taken into account: Snedden at 108-109 [150]-[151] (Middleton and Wigney JJ). In any event, it is clear from the nature and substance of the material before the Attorney-General that information as to the effect on Mr Alexander, of international travel and a criminal trial was put before him. The proper inference to draw, in the absence of any evidence to the contrary, and in circumstances where there was no obligation to give reasons, is that the Attorney-General had regard to such information. 52 Lastly, as to the Delay Submission, it was said the offences were allegedly committed up to 49 years ago, and no explanation has been given for the delay. To the extent that this submission was advanced separately from the earlier points as to injustice or oppression, it is not a matter which is the subject of a precondition in s 22(3) to the exercise of power in s 22(2), nor was it an issue which Mr Alexander made representations about to the Attorney-General. This submission has no merit in the extradition context (whatever its merits in any other applications Mr Alexander may make elsewhere in the context of his prosecution).

G CONCLUSION 53 Despite Mr Smith saying all he could in support of the adjournment and substantive application, there is no error of a type attracting relief demonstrated nor is there a proper basis for me to, in effect, revisit the merits of the case. The application must be dismissed and there is no reason why costs should not follow the event. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.